Texas Supreme Court to hear Tarrant indigency case

The Texas Supreme Court has agreed to hear a case challenging the Tarrant County district clerk’s policy of trying to collect court fees from indigent parties involved in family law cases.

Former Texas Supreme Court Justice Wallace Jefferson is leading a group of attorneys asking the court to stop the practice, saying it threatens a basic tenet of justice, which is access to the courts by the poor.

Jefferson is representing seven local residents who originally sued Tarrant County District Clerk Tom Wilder in 2013 after he sent out letters dunning indigent clients for unpaid fees in family court cases. He collected at least $60,000 before the effort was suspended because of the litigation.

All of the plaintiffs previously had filed affidavits of indigency at the time of their divorces, showing that they couldn’t pay the standard court costs.

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While they persuaded a state district court to issue an injunction stopping Wilder from collecting the fees, an appeals court eventually dismissed that lawsuit, leading Jefferson and others to challenge the process in the state’s highest court. The court did not set a time for oral arguments, but the attorney representing Tarrant County said they could take place this summer.

Lee DeFilippo, one of the attorneys representing the plaintiffs, said she was excited that the court granted their petition because the case “has the potential to impact the the rights of low-income people across the whole state of Texas to access the courts.”

A brief filed by the Texas Access to Justice Commission and the Texas Civil Rights Project said if the appeals court decision isn’t overturned, it will have “grim ramifications for poor Texans.” The groups also are concerned that the idea of charging the fees to poor litigants could spread.

A commission subcommittee reviewing policies regarding pro se litigants, or people representing themselves in court, has already received numerous reports from legal aid attorneys, judges and court personnel about people facing difficulties filing for affidavits of indigency.

“This case will set the precedent for how indigents are treated in all Texas courts,” said Jason Smith, a Fort Worth attorney involved in the case. “We’ve gotten the word that other counties are looking to this case to see if they can do the same thing as Wilder.”

Wilder has argued in court that he is only doing what the judges ordered him to do and that he is not blocking anyone’s access to court. He has also said he used a process patterned after other large Texas counties and acted on advice from the district attorney’s office.

Tarrant County Assistant District Attorney Chris Ponder, who is defending Wilder, argued earlier that the plaintiffs could have fixed the problem by returning to the court where they received their divorces and asking that the matter be cleared up.

In recent court documents he also argued that the Supreme Court recently revised divorce forms to introduce “new language into the family law arena,” making it clear that someone who has successfully proved their indigency is not required to pay court costs.

The new forms state that “costs of court are to be borne by the party who incurred them to the extent the party is required to pay such costs. A party who has filed an affidavit of indigency that was not successfully contested is not required to pay court costs.”

“Everything turns on the language in the judgments,” Ponder said. “The new form that the court has published has different language and specifically speaks to being indigent.”

Form language

When the Tarrant County plaintiffs received letters from Wilder seeking money, they had no idea that they owed money.

All had filed affidavits of indigency at the time of their divorces, waiving court costs under Rule 145 of the Texas Rules of Civil Procedure, which was written to provide a “statutory exception for those litigants who are able to demonstrate that they cannot afford such costs.” In Tarrant County, for example, the filing fee for a divorce with no children is $279; a divorce with children is $330.

When litigants can’t pay, the county absorbs the costs. The county can challenge an indigency affidavit, and Wilder has said he has uncovered scams involving people who had the income but simply did not want to pay.

But some of the defendants also used an eight-page fill-in-the-blanks, check-the-boxes divorce form from the Tarrant County Law Library. At the end is a one-sentence section on court costs that says: “The Husband will pay for his court costs; the Wife will pay for her court costs.”

Those stipulations in the documents allowed Wilder to seek payment of court costs as ordered by the court, despite the affidavit of indigency. Some of the defendants were shocked to receive notices years after their cases were concluded saying they owed hundreds of dollars and if they didn’t pay, the debt would be turned over to a sheriff’s deputy or a constable for collection.

In an internal document produced by Wilder during the court case, he collected at least $60,000 from 700 cases where a pauper affidavit had been filed but the account was past due. Many of the litigants owed somewhere around $300, while others were being asked to pay much more, some over $1,000.

“The judgment says they will pay the court costs, and the clerk’s role is then to tax costs consistent with the judgment,” Ponder said.

Renegade clerks

But allowing Tarrant County to charge poor litigants court costs — sometimes years after the fact — takes Texas civil procedure Rule 145 that was designed to guarantee access to the courts and turns it into a “mirage,” according to court documents filed by Jefferson, DeFilippo and Smith.

They also disputed the notion that the defendants, many of them not very sophisticated, would figure out that they could go back to the court and have the fees removed.

In Tarrant County, more than 4,000 petitioners represented themselves in family court in the fiscal year ending in August 2013, each of whom possibly was indigent, court papers state. Statewide, there were 64,486 pro se litigants, and 12,398 in other civil cases, in 2013.

“Someone who already thought they had qualified as an indigent and being subjected to collection efforts isn’t going to be anxious to return to court,” Smith said.

Attorneys for the Access to Justice Commission also argued in documents filed with the Supreme Court that the adoption of new divorce forms is “only one step toward discouraging the abuses present here; they are by no means a panacea.”

They point out that the forms only apply to one narrow subset of divorces — uncontested divorces involving no children or real property — and have no bearing in other cases where the forms are not or cannot be used. The forms also are not mandatory.

Marisa Secco, a Vinson & Elkins attorney who worked on the commission’s amicus brief, said the case could have widespread impact, although they don’t know of any other county making a similar collection effort from pauper clients. But there have been other obstacles placed before poor litigants, including adoption of policies discouraging the filing of indigency affidavits.

“It could happen in other counties,” said Secco, who used to be a rules attorney for the Supreme Court. “Just because we have a limited subset of litigants does not mean it would not affect a larger population in Texas.”

Ponder disagrees that this is a landmark case and says in court documents that opposing counsel is “appealing to a fear that renegade clerks will operate with impunity and without restraint of the rules.”

He said the new forms promulgated by the Supreme Court will be “the models for all the other forms that get generated by legal aid groups and private organizations. … This is not likely to replicate itself going forward.”